GETTING IT WRONG ABOUT “GETTING IT RIGHT” The Remarkable Lavish Praise by Justices Thomas and Scalia of Radical Liberal Judicial Activists — PART IV

By Lester Jackson, on May 24th, 2013

On television, Justices Thomas and Scalia lavishly praise extremist liberal activists. For those who eviscerate the Constitution,such praiseis unjustified on the merits as well as contradicted by the scathing writings of Thomas and Scalia themselves.

NOTE: It is the reader’s choice whether to consult or disregard the links below. The main goal here is to be easily understood, while providing proof for those who might think that what follows is fiction. This is written to enable easy reading without looking at the links.

IV. Specific Value and Policy Judgments: Hypocrisy and Perversity

Hypocrisy

Without using the word, Justices Thomas and Scalia repeatedly portray fellow justices as hypocrites pretending to do and be the opposite of what they really do and are. In deciding cases, “self-righteous” justices impose their professed personal values on everyone else when it suits them, but not consistently. And it is not unusual for them to avoid subjecting themselves to their own lofty preachings.

A conceit so endemic to leftists that it requires no documentation is their repeated claim to represent and protect the weak against the powerful, the poor against the rich, etc. They endlessly prattle about “fairness.” Nevertheless, attorney Jacobsen has hit the radical leftist nail on the head in referring to Justice Brennan, publicly anointed by Justice Scalia as “the most influential justice of the 20th century.” Jacobsen disputes the notion that Brennan saw the “judiciary’s role as a defender of vulnerable minorities and individuals.” Instead, “[t]he chief distinguishing feature of Brennan’s jurisprudence was his utter contempt for the most vulnerable of individuals … a grossly disproportionate number of whom were members of minority groups: victims of crime.”

In one case, Thomas (joined by Scalia and Rehnquist) rebuked pro-criminal justices for having “unnecessarily sentenced law-abiding citizens to lives of [gang inflicted] terror and misery,” pointing to the “shame” that “our most vulnerable citizens…the people who will have to live with the consequences of today’s opinion do not live in [justices’ safe] neighborhoods.”

Majority justices also took the side of the strong against the weak when they proclaimed (after previously denying) the lives of rape-murder victims to be less important than those of allegedly retarded powerful premeditated killers such as Penry. Scalia (joined by Thomas and Rehnquist) declared: “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members.”

Surely, safeguarding300-pound men who viciously attack the most helpless rape victims, little girls, cannot be characterized as anything but protecting the very strong against the very weak and defenseless.

Even still more helpless are infants. Reacting to five justices invalidating a state law against “partial birth abortion,” Justices Scalia and Thomas did not limit their objection to illegitimate usurpation of power to impose personal moral and value judgments. Here, they explicitly expressed their own judgment of these judgments. Thomas (joined by Scalia and Rehnquist) accused colleagues of validating “infanticide.” For himself, an aghast Scalia described the majority justices as imposing a “constitutional right” to engage in a “visibly brutal … barbarian … method of killing a human child … [and] eliminating our half-born posterity … so horrible that … it evokes a shudder of revulsion….” (Explanations: here and here.)

When the Court later upheld a narrower federal law to rescue partly born infants, the “fabulous” Ginsburg revealingly took the rare step of reading her dissent from the bench to express her indignation that the moral values of elected representatives, which she labeled “the Court’s ‘moral concerns,’” should prevail over her own: that it was perfectly moral – and mandated by the Constitution, no less – to puncture the skulls and suck out the brains of defenseless living creatures considered to be “human children,” not alone by Scalia but also by countless others, including abortion supporters such as the late Senator Moynihan and Mayor Koch. Although Ginsburg denounced fellow justices for their “irrational…notion,” she did not hesitate, just months later, to hypocritically fuel the media canard that Scalia is uniquely harsh and “intemperate” because he once said the position of another justice could not be taken “seriously.” While Thomas and Scalia heap unwarranted praise upon Ginsburg, she has no scruples about twisting the knife of unjustified slander.

In dissenting from a Brennan opinion, Scalia noted the “irony” that “the only losers” were “predominantly unknown, unaffluent, unorganized [individuals who] suffer … injustice at the hands of a Court fond of thinking itself the champion of the politically impotent.”

In the infamous 5-4 Kelo eminent domain case, five self-styled “compassion/fairness” justices redefined and expanded “public use” to mean “public purpose,” enabling local politicians (frequently corrupt) to severely traumatize an 88-year-old lady by evicting her from, confiscating and destroying the only home she had ever lived in, so that the land could be transferred to a huge corporation (which ultimately abandoned it).Thomas sadly observed: “no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them. … these losses will fall disproportionately on poor communities [that are] the least politically powerful.” In addition, Thomas and Scalia joined Justice O’Connor’s dissent: “[T]he fallout … will not be random. The beneficiaries are likely to [have] disproportionate influence and power … [T]he government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.” [Emphasis added.}

The majority justices were doubly perverse. Thomas noted their “overriding respect for the sanctity of the home …when the issue is only whether the government may search a home. Yet today the Court tells us that …the government may … tear[] down … homes. Something has gone seriously awry …. Though citizens are safe from the government in their homes, the homes themselves are not.” [Emphasis added.]

Dishonesty, Perversity and Punishment-Free Crime

Although already mentioned, one outrage is so shocking and so clearly demonstrates dishonesty that it merits citation for a special place of maximum dishonor in the Supreme Court pantheon of perversities. When it comes to perversity that the “Founders cannot have intended,” nothing can top that of arrogant justices with a soft spot for depraved convicted murderers and rapists. Such justices would have us believe that, as a reward for the exceptionally worst barbarities – beyond the imaginations of normal people – the Framers created a “constitutional right” to commit further unimaginable violence, including murder and rape, with absolutely no punishment at all! (Full explanation here.) What honest person can possibly believe this?

Nearly as “perverse” is the very low value placed by the “fabulous” justices on “the heart of what the First Amendment is meant to protect: the right to criticize the government.” Justice Scalia made clear that a prime motivation of incumbents who enact so-called campaign finance reform is to suppress criticism by challengers. He proclaimed it “a sad day for the freedom of speech” when justices granted congressional incumbents the power to enact a law suppressing challengers’ freedom to criticize them. These were the same justices who had “sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography … tobacco advertising … dissemination of illegally intercepted communications… and sexually explicit cable programming ….”

As summarized by Thomas, justices in a past (and likely future) majority have claimed the First Amendment protects

“speech,” such as making false defamatory statements, filing lawsuits, dancing nude, exhibiting drive-in movies with nudity, burning flags, and wearing military uniforms… Not surprisingly, the Courts of Appeals have followed our lead … protect[ing], for example, begging, shouting obscenities, erecting tables on a sidewalk, and refusing to wear a necktie. … [T]oday’s decision is a most curious anomaly. … [T]he majority today, rather than going out of its way to protect political speech, goes out of its way to avoid protecting it.

Thomas later added to the list of the protected: pornographers, flag burners and cross burners.

Affirmative Action Hypocrisy

A particularly striking illustration of hypocrisy is Supreme Court imposed quotas, euphemistically referred to as “affirmative action.” Two strong proponents have been Justices Brennan and Ginsburg. Yet Brennan explicitly refused ever to hire any female law clerk, rejecting even a top Berkeley Law School graduate highly recommended by two of his former male law clerks. At her confirmation hearings, Ginsburg avidly defended tormenting small businesses for statistical disparities in hiring minorities, despite the fact (130-31) that, during her thirteen years as a circuit judge, there was not one black among the 57 employees she hired – even secretaries and interns!

This history did not stop either Brennan or Ginsburg from shamelessly pontificating on the dubious virtues “benign” discrimination, i.e., in favor of women and minorities and against men, whites and non-designated minorities (e.g., Asians).

Justices Scalia and Thomas did not meekly turn the other cheek.

Referring to a law so clear as to be “a modelof … draftsmanship,” Scalia excoriated justices for “convert[ing a] statute designed to establish a color-blind and gender-blind workplace … into a powerful engine of racismand sexism, not merely permitting intentional race- and sex-based discrimination, but often [compelling] it….” [Emphasis added.] But Scalia seems positively diplomatic compared to Thomas.

First, Thomas upbraided justices for “uphold[ing] … racial discrimination.” Second, he berated justices for believing that “anything … predominantly black must be inferior” and that “there must be something inferior about blacks”; and for deciding cases “based upon a theory of black inferiority.” (Is that why, in relative obscurity as a circuit judge, Ginsburg refused to hire a single black in 13 years?) Third, as to such decisions,just as Thomas protested against justices who, lacking Constitutional authority, illegitimately protect murderers, here too, he long ago objected to justices’ “usurpation,” “overreaching” and “extravagant use” of judicial power “beyond its [constitutionally mandated role.]” In doing so, he suggested, they assumed they were “omniscient.”

Fourth, he denounced justices’ distinction between “benign” and “malign” discrimination as “noxious … poisonous and pernicious,” explaining that “such programs … provoke resentment among those who believe that they have been wronged by the government’s use of race [and] stamp minorities with a badge of inferiority… [E]very racial classification helps … some races and hurts others. … ‘benign’ or ‘malign’ … turns on ‘whose ox is gored[.]’” Finally “government-sponsored racial discrimination based on benign prejudice … is racial discrimination, plain and simple”

On January 13, 2013, Justice Sotomayor punctuated this point, displaying almost willful obtuseness. She expressed distress that anyone would think it improper that Princeton University admitted her based on ethnicity, despite her deficient vocabulary and “meager writing and critical-thinking skills” and without even considering the number one and two students in her high school class!! As she complained, a school nurse “thought there was something wrong with them looking at me and not looking at those other two students.”

Sotomayor defends affirmative action as helping the poor. After all, “for me, it was a door opener that changed the course of my life.” She does not say that, for the others, it was a “door closer,” so that she got her chance at their expense. Equating ethnicity with disadvantage,it does not appear to have crossed her self-centered mind that the two students sacrificed for belonging to the wrong ethnic group might also have been poor. Sotomayor shows no sign of caring what their circumstances were or what became of them. Instead, she whines that, because she received a preference, her capability was questioned: “We have to prove ourself [sic]. And we have to work hard at doing it.” This self-styled “wise Latina” apparently believes, not only that her ethnicity makes her a better judge than white males, but also other ethnics do not have to work hard.

Can there be a better illustration of Thomas’ objection to judicially imposed noxious and poisonous resentment?

In one of his last opinions, longtime liberal Justice Douglas forcefully stated what is obvious to all but ethnic quota advocates. Because there are also poor whites, Asians, etc., aid to poor people should be granted regardless of race rather than by excluding some based on race. Using almost identical language, Douglas presciently preceded Thomas by two decades: “minority admissions policy is certainly not benign with respect to nonminority students who are displaced by it … A segregated admissions process creates suggestions of stigma and caste … that blacks or browns cannot make it on their individual merit. That is [an impermissible] stamp of inferiority[.]” While Thomas called “benign prejudice … racial discrimination, plain and simple,” Douglas declared that any ethnic discrimination or preference was unconstitutionally “invidious.”

On February 27, 2013, echoing Thomas, Sotomayor removed any doubt (14) that she is an utter hypocrite, declaring: “Discrimination is discrimination … discrimination is still discrimination[.]” Except, of course, when, based solely on ethnicity, she is given a preference by denying opportunities to others with superior qualifications. After all, how can anyone think that that is unfair?

V. Conclusion

Given what Supreme Court justices do, the gushing televised praise by Justices Thomas and Scalia of their colleagues is unwarranted. This is most powerfully demonstrated by what Thomas and Scalia themselves have written.

How can an institution be separated from the performance of its members – and vice versa? Even on television, when asked if the country is “well served” by the Court, Scalia urged reliance on a “British stiff upper lip” because “it is the only Supreme Court we have.” That defines “damning with faint praise.”

Repeatedly in writing, sometimes explicitly and often implicitly but unmistakably, Thomas and Scalia have questioned the integrity of their colleagues; and accused them of arrogance, lawlessness, license, illegitimate abuse of power, basing decisions on no more than their own personal values, contempt for the Constitution, sowing confusion rather than providing clarity, hypocritically pretending to defend the weak against the powerful while actually favoring the powerful at the expense of the weak, protecting “inconsequential” expression while disdaining the “heart” of the first amendment (the right to criticize officeholders), poisonous and pernicious racism and sexism, belief in black inferiority, placing at risk the lives of good innocent people in order to save the lives of the most vicious and depraved, placing the welfare of terrorists above the lives of soldiers combatting them, mandating “infanticide” (the barbaric killing of “human children”), and other sins too numerous to discuss here.

To say the least, these are very strange criteria for “good … honest … fabulous” justices.

It may be unrealistic to expect Thomas and Scalia to criticize sharply in public those with whom they must work. If so, that is a one way street. As noted, when given a chance to put to rest an utterly false oft-repeated slander of Scalia, Justice Ginsburg, instead, shamelessly attempted to validate it.

More importantly, even if Scalia and Thomas deem it inappropriate to be publicly negative about other justices, they surely have no reason to give lay people the impression that rabid leftist ideologues are magnificent. This can only confer unmerited legitimacy upon an institution infected by rampant judicial arrogance, dishonesty and lawless abuse of power.

In turn, that can only grossly disserve the cause of constitutional government to which Thomas and Scalia have been so otherwise tirelessly dedicated.